Informed consent during most of my practice career was easy and pretty much a non-issue. Litigation wasn’t a big deal in the 1970s, except apparently in California, where the California Association of Orthodontists drafted an informed consent form for its members. I practiced in Vermont and, like most other orthodontists, used that simple CAO form, which warned patients of some possible complications of routine orthodontic treatment. Most patients probably signed it without reading it — just like they now sign a waiver form to get internet access at a hotel or airport.
Things have changed. I’m not a legal expert, but I travel a lot, and it is impossible not to notice the billboards every few miles along freeways in virtually every major city advertising lawyers for motor vehicle accident victims, slip and fall injuries, and more. If you buy french fries at McDonald’s and your bag is short a few fries, you might find a lawyer willing to represent you.
The airway arena is perhaps particularly fertile ground for litigation. Much of the treatment that has a chance of improving the airway for kids falls under the umbrella of orthodontic treatment. If you read and follow both the original and updated AAO Whitepaper on Airway, you will understand my concern. There is very little real enthusiasm for doing anything meaningful for these kids.
Apparently very few understand that orthodontists in the early 1900s were expanding both arches in the primary dentition to effectively treat or prevent what was then called mental retardation. Articles in the literature from that era were emotional and described long-term health and wellness problems that doctors were deeply concerned about and sought to prevent. In my mentorships and lectures I cite many of these papers, along with non-medical and non-dental literature from the 1800s to the same effect. Things changed, and the orthodontic profession today has apparently lost sight of these concerns.
I was taught that the lower arch cannot be expanded or the teeth will be pushed off the bone and lost. I was taught that expansion of the maxilla was only done to correct a posterior crossbite, and that such expansion probably would be no more than 4 to 5 mm. Four to five mm is a drop in the bucket compared to what is needed to help a child get the tongue to the palate properly, achieve correct rest oral posture, and become a 100% nasal breather.
One of the biggest names in the airway movement, the late Dr. Christian Guilleminault — with over 400 articles in the refereed literature — stated that “100% nasal breathing is the only legitimate endpoint in treating OSA.” I expanded both arches for my own boys, who are now 48 and 50. I’ve had my 17-year-old grandson’s dental arches expanded 10 mm to make room for his teeth and optimize his airway. What I’ve done is not the standard of care — but it is one of the few things that can help our kids have better futures.
In an era where litigation is a constant threat, I believe it is prudent to have a very thorough informed consent that states honestly and exactly what treatment is, what it is not, and what it can and cannot promise. It is a very complicated world out there.
Do I believe there are treatments that have the potential to help children breathe better and therefore have healthier lives? Absolutely. But as I tell my students, I have never promised one patient resolution of one symptom in my entire career. I promise to do my best. Underpromise and overdeliver. Consult your own attorney to draft a document appropriate for your practice.
